A good student of constitutional law should be conversant not only with
cases upholding certain powers of Congress, but also those describing the
limits of Congressional and state powers. This file identifies many of
those cases and provides links to some of these U.S. Supreme Court cases,
making study easy.

Several states criminally
punished transactions in liquors and lotteries, probably either with or
without license. Congress then enacted certain internal revenue acts which
licensed liquor sales and lotteries. Defendants, conducting illegal state
businesses in these fields, did not obtain federal licenses and were indicted;
they defended by arguing that Congress can't legalize by license an illegal
state activity. The Court held that the licenses did not permit conduct
of such business, but were merely taxes:

"But very
different considerations apply to the internal commerce or domestic trade
of the states. Over this commerce and trade Congress has no power of regulation
nor any direct control. This power belongs exclusively to the states. No
interference by Congress with the business of citizens transacted within
a state is warranted by the Constitution, except such as is strictly incidental
to the exercise of powers clearly granted to the legislature. The power
to authorize a business within a state is plainly repugnant to the exclusive
power of the state over the same subject. ... Congress cannot authorize
a trade or business within a state in order to tax it," Id., at 470-71.

"But it is not necessary
to regard these laws as giving such authority. So far as they relate to
trade within state limits, they give none and can give none," Id., at 471.

"There would be great
force in it if the licenses were regarded as giving authority, for then
there would be a direct conflict between national and state legislation
on a subject which the Constitution places under the exclusive control
of the states," Id., at 472.

Federal revenue act
made it illegal to sell illuminating oil of certain flammability and defendant
was indicted for violating this law in Detroit. Court held defendant could
not be prosecuted:

"As a police
regulation, relating exclusively to the internal trade of the States, it
can only have effect where the legislative authority of Congress excludes,
territorially, all state legislation, as, for example, in the District
of Columbia. Within state limits, it can have no constitutional operation."

See also Matter of
Heff, 197 U.S. 488 (1905), overruled, United States v. Nice,
241 U.S. 591 (1916).

The police
power "is a power originally and always belonging to the states, not surrendered
to them by the general government, nor directly restrained by the constitution
of the United States, and essentially exclusive."

Union National Bank
v. Brown, 101 Ky. 354, 41 S.W. 273 (1897):

"On the contrary,
it may be considered as having been authoritatively settled that the national
government cannot exercise police powers for the protection of the inhabitants
of a state."

"The police
power under the American constitutional system has been left to the states.
It has always belonged to them and was not surrendered by them to the general
government, nor directly restrained by the constitution of the United States...
Congress has no general power to enact police regulations operative within
the territorial limits of a state."

McInerney v. Ervin,
46 So.2d 458, 463 (Fla. 1950):

"The Federal
Government has no general police power and that of the states is beyond
the reach of Congress, except in rare cases where the people in whom it
inheres have released it by the terms of the Federal Constitution."

State law, by construction,
did not provide for bequest of land by will to the U.S.; here, this was
attempted by will of decedent challenged by his heirs. The Court held this
bequest invalid:

"The power
of the State to regulate the tenure of real property within her limits,
and the modes of its acquisition and transfer, and the rules of its descent,
and the extent to which a testamentary disposition of it may be exercised
by its owners, is undoubted. It is an established principle of law, everywhere
recognized, arising from the necessity of the case, that the disposition
of immovable property, whether by deed, descent or any other mode, is exclusively
subject to the government within whose jurisdiction the property is situated
.... The power of the State in this respect follows from her sovereignty
within her limits, as to all matters over which jurisdiction has not been
expressly or by necessary implication transferred to the Federal Government.
The title and modes of disposition of real property within the State, whether
inter vivos or testamentary, are not matters placed under the control of
federal authority. Such control would be foreign to the purposes for which
the Federal Government was created, and would seriously embarrass the landed
interests of the State."

See also Thurlow v.
Massachusetts, 5 How. 504, 588 (1847):

"The States,
resting upon their original basis of sovereignty, subject only to the exceptions
stated, exercise their powers over everything connected with their social
and internal condition. A State regulates its domestic commerce, contracts,
the transmission of estates, real and personal, and acts upon all internal
matters which relate to its moral and political welfare. Over these subjects
the federal government has no power. They appertain to the State sovereignty
as exclusively as powers exclusively delegated appertain to the general
government."

"The police power,
which is exclusive in the States, is alone competent to the correction
of these great evils," Id., at 632.

Federal law made penal
fraud on creditors occurring within three months of filing bankruptcy petition;
defendant charged with violating this law, but the Court held it void:

"But an act
committed within a State, whether for a good or a bad purpose, or whether
with an honest or a criminal intent, cannot be made an offense against
the United States, unless it have some relation to the execution of a power
of Congress, or to some matter within the jurisdiction of the United States.
An act not having any such relation is one in respect to which the State
can alone legislate."

Henry DeWitt, of U.S.
v. DeWitt fame, held patent for heating oil, and assigned it to Patterson,
who was prosecuted for violating state law. Patterson claimed that the
U.S. patent made heating oil valid in state. In affirming Patterson's conviction,
court held that holder of patent acquired no superior rights under state
law, and use of patented product in violation of state law could be punished
by the state.

Revised statutes provided
procedure to protect, by registration, trademarks; later act attached criminal
penalties. Individuals were indicted for violating trade-mark law, and
they argued that these criminal penalties were unconstitutional. The Court,
in dismissing indictments, held that Congress had no such express powers
over trademarks, and act was unconstitutional. It also noted that this
law, not statutorily connected to interstate commerce, could not be valid
on this grounds:

"If it is
not so limited, it is in excess of the power of Congress. If its main purpose
be to establish a regulation applicable to all trade; to commerce at all
points, especially if it is apparent that it is designed to govern the
commerce wholly between citizens of the same State, it is obviously the
exercise of a power not confided to Congress."

"It has been
a long established rule that the courts of the United States have no jurisdiction
upon the subject of divorce ...," Id., at 307.

"But the general rule
above stated has no application to the jurisdiction of the territorial
courts, or of the appellate jurisdiction of this court over those courts,"
Id., at 308.

"[T]hat Congress, having
entire dominion and sovereignty over territories, 'has full legislative
power over all subjects upon which the legislature of a state might legislate
within the state," Id., at 308.

Federal law made penal
the use of immigrant women for immoral purposes for three years after entry;
Keller was indicted and convicted of this, but Court reversed. It was held
that this was an act within the police power of the states, and Congress
could not legislate in this manner.

"[T]here is
in the Constitution no grant to Congress of the police power," Id., at
148.

Oklahoma legislature
decided to change capital from Guthrie to Oklahoma City; suit brought to
challenge this on grounds state act violated act admitting Oklahoma into
Union. Court held Congress had no power to control such a matter after
admission of state into Union.

Court found federal
law designed to regulate interstate commerce in products made by child
labor as unconstitutional, holding that Congress under the interstate commerce
clause cannot regulate production of goods before they enter such commerce.

"Over interstate
transportation, or its incidents, the regulatory power of Congress is ample,
but the production of articles, intended for interstate commerce, is a
matter of local regulation."

Federal child labor
tax law was challenged; Drexel made furniture in North Carolina, and was
hit with tax of large amount for employing a boy under 14 years of age.
The Court held the act unconstitutional as a mere attempt to circumvent
Hammer
via a penalty under the guise of a tax:

"Grant the
validity of this law, and all that Congress would need to do, hereafter,
in seeking to take over to its control any one of the great number of subjects
of public interest, jurisdiction of which the states have never parted
with, and which are reserved to them by the Tenth Amendment, would be to
enact a detailed measure of complete regulation of the subject and enforce
it by a so-called tax upon departures from it. To give such magic to the
word 'tax' would be to break down all constitutional limitation of the
powers of Congress and completely wipe out the sovereignty of the states."

Federal law, Future
Trading Act, attacked as unconstitutional by members of Board of Trade
in Chicago; the law was a detailed regulation of trade on exchanges combined
with a tax. Court held act invalid as beyond Congressional powers, the
subject being within province of the states.

Suit by coal company
against United Mine Workers of America for coal field strike which destroyed
its business; suit based on anti-trust theory involving restraint on interstate
commerce. From verdict in favor of coal company, Court reversed, holding
there was no interstate commerce:

"Coal mining
is not interstate commerce, and the power of Congress does not extend to
its regulations as such."

Companies engaged in
making leather goods sold in interstate commerce were subjected to a strike,
and they sued under Anti-Trust Act. Court held suit could not be maintained
because there was no provable, direct restraint on such commerce.

Builders association
in San Francisco was plagued by union difficulties and devised the "American
plan", which the government contended violated federal anti-trust law.
But, Court held there was no violation, "for building is as essentially
local as mining, manufacturing or growing crops."

Motorcycle manufacturer
sold vehicle to city government and U.S. sought to collect sales tax. Court
held that tax on sales to state and local government could not be imposed
by the U.S.

(22) Levering
v. Garrigues Co., 289 U.S., 103, 53 S.Ct. 549 (1933):

Company engaged in
erection of steel for buildings in NYC sued union under anti-trust laws
for restraining interstate commerce. Court held that such commerce was
not involved in case and dismissed suit.

Congress set up retirement
system for carriers subject to I.C.C., and carriers challenged act as unconstitutional.
Court agreed and held act violated due process and was not a regulation
of interstate commerce:

"The catalogue
of means and actions which might be imposed upon an employer in any business,
tending to the satisfaction and comfort of his employees, seems endless.
Provision for free medical attendance and nursing, for clothing, for food,
for housing, for the education of children, and a hundred other matters
might with equal propriety be proposed as tending to relieve the employee
of mental strain and worry. Can it fairly be said that the power of Congress
to regulate interstate commerce extends to the prescription of any or all
of these things? Is it not apparent that they are really and essentially
related solely to the social welfare of the worker, and therefore remote
from any regulation of commerce as such? We think the answer is plain.
These matters obviously lie outside the orbit of congressional power."

N.I.R.A. applied to
petroleum production. Court found act permitted President unbridled legislative
authority and his executive orders found void on principles of delegation
of legislative powers grounds.

NIRA permitted "codes"
to be promulgated by industry groups, which "codes" had effect of law.
Schecter officials indicted for violating "code" for acts occurring inside
NYC. Court held NIRA unconstitutional on delegation of powers grounds and
found the acts in question not a part of interstate commerce. Congress
has no power over local wages and hours of work:

"If the commerce
clause were construed to reach all enterprises and transactions which could
be said to have an indirect effect upon interstate commerce, the federal
authority would embrace practically all the activities of the people, and
the authority of the state over its domestic concerns would exist only
by sufferance of the federal government. Indeed, on such a theory, even
the development of the state's commercial facilities would be subject to
federal control."

"It is a statutory
plan to regulate and control agricultural production, a matter beyond the
powers delegated to the federal government. The tax, the appropriation
of the funds raised, and the direction for their disbursement, are but
parts of the plan. They are but means to an unconstitutional end," Id.,
at 68.

"And contracts for
the reduction of acreage and the control of production are outside the
range of that power," Id., at 73.

"The expressions of
the framers of the Constitution... will be searched in vain for any suggestion
that there exists in the clause under discussion or elsewhere in the Constitution,
the authority whereby every provision and every fair implication from that
instrument may be subverted, the independence of the individual states
obliterated, and the United States converted into a central government
exercising uncontrolled police power in every state of the Union, superseding
all local control or regulation of the affairs or concerns of the states,"
Id., at 77.

Bituminous Coal Conservation
act imposed tax with a drawback provision conditioned upon compliance with
a code regarding prices, labor and other regulations. Court held recitals
in act were not the law, that tax was really a penalty, act violated reserved
powers of the state, act was not regulation of interstate commerce, and
act violated delegation of powers principles:

"One who produces
or manufactures a commodity, subsequently sold and shipped by him in interstate
commerce, whether such sale and shipment were originally intended or not,
has engaged in two distinct and separate activities. So far as he produces
or manufactures a commodity, his business is purely local. So far as he
sells and ships, or contracts to sell and ship, the commodity to customers
in another state, he engages in interstate commerce. In respect to the
former, he is subject only to regulation by the state; in respect to the
latter, to regulation only by the federal government."

State governments and
their political subdivisions can't use bankruptcy.NOTE: A popular argument
in movement circles contends that this whole nation was placed into bankruptcy
in 1930 and Roosevelt devised a plan to get judicial approval of the "bankruptcy"
via the decision in the 1938 Erie Railroad case. But how can such a legal
theory fly in view of the decision in this case?

Federal avocado standards
less stringent than California standards were challenged, but Court upheld
validity of state laws regarding avocados. Court stated that preparation
of foodstuffs for market has always been a matter of local concern:

"Specifically,
the supervision of the readying of foodstuffs for market has always been
deemed a matter of peculiarly local concern."

Federal voting rights
act setting forth qualifications for voters in federal elections could
not be applied to state elections.

(35) Drug and
related cases:

(a) In United
States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658 (1916), the
Court had before it the validity of this act which operated within the
jurisdiction of the state, and it held that dismissal of the indictment
was mandated because the act invaded the jurisdiction of the state and
Congress simply lacked the constitutional power to penalize mere possession
of opium within state jurisdiction.

(b) In United States
v. Ah Hung, 243 F. 762, 764 (E.D.N.Y. 1917), it was stated: "Mere possession
of an article injurious to health would not render a person liable to a
United States statute unless some constitutional basis for the statute
gives the United States the right to regulate upon the subject."

"In interpreting
the act, we must assume that it is a taxing measure, for otherwise it would
be no law at all. If it is a mere act for the purpose of regulating and
restraining the purchase of the opiate and other drugs, it is beyond the
power of Congress, and must be regarded as invalid."

"[T]he States
own the tidewaters themselves and the fish in them, so far as they are
capable of ownership while running."

"The title thus held
is subject to the paramount right of navigation, the regulation of which,
in respect to foreign and interstate commerce, has been granted to the
United States. There has been, however, no such grant of power over the
fisheries. These remain under the exclusive control of the State..."

"The court
is unable to find any provision in the Constitution authorizing Congress,
either expressly or by necessary implication, to protect or regulate the
shooting of migratory wild game in a state, and is therefore forced to
the conclusion that the act is unconstitutional."

United States v. McCullagh,
221 F. 288, 293 (D.Kan. 1915):

"[T]he exclusive
title and power to control the taking and ultimate disposition of the wild
game of this country resides in the state, to be parted with and exercised
by the state for the common good of all the people of the state, as in
its wisdom may seem best."

"The Government
of the United States is not concerned with, nor has it power to control
or regulate the internal discipline of the penal institutions of its constituent
states. All such powers are reserved to the individual states," 180 F.2d,
at 788.

"The 14th Amendment
does not empower Congress to legislate on matters within the domain of
the states' powers, nor to legislate against the wrongs and personal actions
of individuals within the state nor to regulate and control the conduct
of private individuals," 180 F.2d, at 789.

(50) Tax on
exports void: Fairbanks v. United States, 181 U.S. 283 (1901); United
States v. Hvoslef, 237 U.S. 1 (1915); Thames & Mersey Marine
Ins. Co. v. United States, 237 U.S. 19 (1915). See also United
States Shoe Corp. v. United States, 907 F.Supp. 408 (Ct.Int.Trade
1995), affirmed at 114 F.3d 1564 (Fed.Cir. 1997): harbor maintenance tax
is unconstitutional (this link is to the decision of the appellate court).Cert
has been granted.

(51) Separation
of powers: Plaut
v. Spendthrift Farms, ___ U.S. ____ (1995): Based upon principles
of separation of powers, Congress cannot enact law which essentially reviews
decisions of the courts.

STATE LIMITS OF
POWER

A. POLICE POWERS:

The courts have held that the states have a power known as the "police
power." You should know what is the "police power" as well as know about
some of the laws which the courts have declared unconstitutional as outside
the police power. Here are some of those cases:

People v. Brown,
95 N.E.2d 888 (Ill. 1950): a person's trade or business is property.

SCHOOLING:

Pierce
v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573 (1925):
State law requiring children to be sent to public schools held unconstitutional:

"The fundamental
theory of liberty upon which all governments in this Union repose excludes
any general power of the state to standardize its children by forcing them
to accept instruction from public teachers only. The child is not the mere
creature of the state; those who nurture him and direct his destiny have
the right, coupled with the high duty, to recognize and prepare him for
additional obligations."